G.R. No.
82544 June 28, 1988
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS
OF: ANDREW HARVEY, JOHN SHERMAN and ADRIAAN VAN
DEL ELSHOUT, petitioners,
vs.
HONORABLE COMMISSIONER MIRIAM DEFENSOR
SANTIAGO, COMMISSION ON IMMIGRATION AND
DEPORTATION, respondent.
MELENCIO-HERRERA, J.:
A petition for Habeas Corpus.
Petitioners Andrew Harvey and John Sherman, 52 and 72
years, respectively, are both American nationals residing at
Pagsanjan, Laguna, while Adriaan Van Elshout, 58 years
old, is a Dutch citizen also residing at Pagsanjan, Laguna.
The case stems from the apprehension of petitioners on 27
February 1988 from their respective residences by agents
of the Commission on Immigration and Deportation (CID) by
virtue of Mission Orders issued by respondent Commissioner
Miriam Defensor Santiago of the CID. Petitioners are
presently detained at the CID Detention Center.
Petitioners were among the twenty-two (22) suspected
alien pedophiles who were apprehended after three months
of close surveillance by CID agents in Pagsanjan, Laguna.
Two (2) days after apprehension, or on 29 February 1988,
seventeen (17) of the twenty-two (22) arrested aliens
opted for self-deportation and have left the country. One
was released for lack of evidence; another was charged not
for being a pedophile but for working without a valid
working visa. Thus, of the original twenty two (22), only
the three petitioners have chosen to face deportation.
Seized during petitioners apprehension were rolls of photo
negatives and photos of the suspected child prostitutes
shown in salacious poses as well as boys and girls engaged
in the sex act. There were also posters and other literature
advertising the child prostitutes.
The "Operation Report," on Andrew Harvey and Richard
Sherman dated 29 February 1988 stated:
xxx xxx xxx
ANDREW MARK HARVEY was found
together with two young boys.
RICHARD SHERMAN was found with two On 4 April 1988 petitioner Andrew Harvey filed a
naked boys inside his room.
In respect of Van Den Elshout the "After Mission Report,"
dated 27 February 1988 read in part:
Noted:
There were two (2)
children ages 14 &
16 which subject
readily accepted
having been in his
care and live-in for
quite sometime.
On 4 March 1988, deportation proceedings were instituted
against petitioners for being undesirable aliens under
Section 69 of the Revised Administrative Code (Deportation
Case No. 88-13). The "Charge Sheet" read inter alia:
Wherefore, this Office charges the
respondents for deportation, as
undesirable aliens, in that: they, being
pedophiles, are inimical to public
morals, public health and public safety
as provided in Section 69 of the Revised
Administrative Code.
On 7 March 1988, Warrants of Arrest were issued by
respondent against petitioners for violation of Sections 37,
45 and 46 of the Immigration Act and Section 69 of the
Revised Administrative Code On the same date, the Board
of Special Inquiry III commenced trial against petitioners.
On 14 March 1988, petitioners filed an Urgent Petition for
Release Under Bond alleging that their health was being
seriously affected by their continuous detention. Upon
recommendation of the Board of Commissioners for their
provisional release, respondent ordered the CID doctor to
examine petitioners, who certified that petitioners were
healthy.
On 22 March 1988, petitioners filed a Petition for Bail
which, however, respondent denied considering the
certification by the CID physician that petitioners were
healthy. To avoid congestion, respondent ordered
petitioners' transfer to the CID detention cell at Fort
Bonifacio, but the transfer was deferred pending trial due
to the difficulty of transporting them to and from the CID
where trial was on-going.
Manifestation/Motion stating that he had "finally agreed to
a self-deportation" and praying that he be "provisionally
released for at least 15 days and placed under the custody
of Atty. Asinas before he voluntarily departs the country."
On 7 April 1988, the Board of Special Inquiry III allowed
provisional release of five (5) days only under certain
conditions. However, it appears that on the same date that
the aforesaid Manifestation/ Motion was filed, Harvey and
his co-petitioners had already filed the present petition.
On 4 April 1988, as heretofore stated, petitioners availed of
this Petition for a Writ of Habeas Corpus. A Return of the
Writ was filed by the Solicitor General and the Court heard
the case on oral argument on 20 April 1988. A Traverse to
the Writ was presented by petitioners to which a Reply was
filed by the Solicitor General.
Petitioners question the validity of their detention on the
following grounds:
1) There is no provision in the Philippine Immigration Act of
1940 nor under Section 69 of the Revised Administrative
Code, which legally clothes the Commissioner with any
authority to arrest and detain petitioners pending
determination of the existence of a probable cause leading
to an administrative investigation.
2) Respondent violated Section 2, Article III of the 1987
Constitution prohibiting unreasonable searches and seizures
since the CID agents were not clothed with valid Warrants
of arrest, search and seizure as required by the said
provision.
3) Mere confidential information made to the CID agents
and their suspicion of the activities of petitioners that they
are pedophiles, coupled with their association with other
suspected pedophiles, are not valid legal grounds for their
arrest and detention unless they are caught in the act.
They further allege that being a pedophile is not punishable
by any Philippine Law nor is it a crime to be a pedophile.
We reject petitioners' contentions and uphold respondent's
official acts ably defended by the Solicitor General.
There can be no question that the right against
unreasonable searches and seizures guaranteed by Article
III, Section 2 of the 1987 Constitution, is available to all
persons, including aliens, whether accused of crime or not
(Moncado vs. People's Court, 80 Phil. 1 [1948]. One of the
constitutional requirements of a valid search warrant or
warrant of arrest is that it must be based upon probable
cause. Probable cause has been defined as referring to
"such facts and circumstances antecedent to the issuance
of the warrant that in themselves are sufficient to induce a
cautious man to rely on them and act in pursuance
thereof." (People vs. Syjuco 64 Phil. 667 [1937]; Alverez vs.
CFI, 64 Phil. 33 [1937]).
The 1985 Rules on Criminal Procedure also provide that an
arrest wit a warrant may be effected by a peace officer or
even a private person (1) when such person has committed,
actually committing, or is attempting to commit an offense
in his presence; and (2) when an offense has, in fact, been
committed and he has personal knowledge of facts
indicating that the person to be arrested has committed it
(Rule 113, Section 5).
In this case, the arrest of petitioners was based on
probable cause determined after close surveillance for
three (3) months during which period their activities were
monitored. The existence of probable cause justified the
arrest and the seizure of the photo negatives, photographs
and posters without warrant (See Papa vs. Mago, L-27360,
February 28, 1968,22 SCRA 857; People vs. Court of First
Instance of Rizal, L-41686, November 17, 1980, 101 SCRA
86, cited in CRUZ, Constitutional Law, 1987 ed., p. 143).
Those articles were seized as an incident to a lawful arrest
and, are therefore, admissible in evidence (Section 12,
Rule 126,1985 Rules on criminal Procedure).
But even assuming arguendo that the arrest of petitioners
was not valid at its inception, the records show that formal
deportation charges have been filed against them, as
undesirable aliens, on 4 March 1988. Warrants of arrest
were issued against them on 7 March 1988 "for violation of
Section 37, 45 and 46 of the Immigration Act and Section 69
of the Administrative Code." A hearing is presently being
conducted by a Board of Special Inquiry. The restraint
against their persons, therefore, has become legal. The
Writ has served its purpose. The process of the law is being
followed (Cruz vs. Montoya, L-39823, February 25, 1975, 62
SCRA 543). "were a person's detention was later made by
virtue of a judicial order in relation to criminal cases
subsequently filed against the detainee, his petition
for hebeas corpus becomes moot and academic" (Beltran
vs. Garcia, L-49014, April 30, 1979, 89 SCRA 717). "It is a
fumdamental rule that a writ of habeas corpus will not be
granted when the confinement is or has become legal,
although such confinement was illegal at the beginning"
(Matsura vs. Director of Prisons, 77 Phil. 1050 [1947]).
That petitioners were not "caught in the act" does not make
their arrest illegal. Petitioners were found with young boys
in their respective rooms, the ones with John Sherman
being naked. Under those circumstances the CID agents had
reasonable grounds to believe that petitioners had
committed "pedophilia" defined as "psychosexual perversion
involving children" (Kraft-Ebbing Psychopatia Sexualis p.
555; Paraphilia (or unusual sexual activity) in which
children are the preferred sexual object" (Webster's Third
New International Dictionary, 1971 ed., p. 1665) [Solicitor
General's Return of the Writ, on p. 101. While not a crime
under the Revised Penal Code, it is behavior offensive to
public morals and violative of the declared policy of the
State to promote and protect the physical, moral, spiritual,
and social well-being of our youth (Article II, Section 13,
1987 Constitution).
At any rate, the filing by petitioners of a petition to be
released on bail should be considered as a waiver of any
irregularity attending their arrest and estops them from
questioning its validity (Callanta v. Villanueva, L-24646 & L-
24674, June 20, 1977, 77 SCRA 377; Bagcal vs. Villaraza, L-
61770, January 31, 1983, 120 SCRA 525).
The deportation charges instituted by respondent
Commissioner are in accordance with Section 37(a) of the
Philippine Immigration Act of 1940, in relation to Section
69 of the Revised Administrative Code. Section 37(a)
provides in part:
(a) The following aliens shall be
arrested upon the warrant of the
Commissioner of Immigration and
Deportation or any other officer
designated by him for the purpose and
deported upon the warrant of the
Commissioner of Immigration and
Deportation after a determination by
the Board of Commissioners of the
existence of the ground for deportation
as charged against the alien;
xxx xxx xxx
The foregoing provision should be construed in its entirety
in view of the summary and indivisible nature of a
deportation proceeding, otherwise, the very purpose of
deportation proceeding would be defeated.
Section 37(a) is not constitutionally proscribed (Morano vs.
Vivo, L-22196, June 30, 1967, 20 SCRA 562). The specific
constraints in both the 1935 1 and 1987 2 Constitutions,
which are substantially Identical, contemplate prosecutions
essentially criminal in nature. Deportation proceedings, on
the other hand, are administrative in character. An order
of deportation is never construed as a punishment. It is
preventive, not a penal process. It need not be conducted
strictly in accordance with ordinary Court proceedings.
It is of course well-settled that
deportation proceedings do not
constitute a criminal action. The order
of deportation is not a punishment,
(Maliler vs. Eby, 264 U.S., 32), it being
merely the return to his country of an
alien who has broken the conditions
upon which he could continue to reside
within our borders (U.S. vs. De los
Santos, 33 Phil., 397). The deportation
proceedings are administrative in
character, (Kessler vs. Stracker 307
U.S., 22) summary in nature, and need
not be conducted strictly in accordance
with the ordinary court proceedings
(Murdock vs. Clark, 53 F. [2d], 155). It
is essential, however, that the warrant
of arrest shall give the alien sufficient
information about the charges against
him, relating the facts relied upon.
(U.S. vs. Uhl 211 F., 628.) It is also
essential that he be given a fair hearing
with the assistance of counsel, if he so
desires, before unprejudiced
investigators (Strench vs. Pedaris, 55 F.
[2d], 597; Ex parte Jew You On, 16 F.
[2d], 153). However, all the strict rules
of evidence governing judicial
controversies do not need to be
observed; only such as are
fumdamental and essential like the
right of cross-examination. (U.S. vs.
Hughes, 104 F. [2d], 14; Murdock vs.
Clark, 53 F. [2d], 155.) Hearsay
evidence may even be admitted,
provided the alien is given the
opportunity to explain or rebut it
(Morrell vs. Baker, 270 F., 577;
Sercerchi vs. Ward, 27 F. Supp., 437).
(Lao Tang Bun vs. Fabre 81 Phil. 682
[1948]).
The ruling in Vivo vs. Montesa (G. R. No. 24576, July 29,
1968, 24 SCRA 155) that "the issuance of warrants of arrest
by the Commissioner of Immigration, solely for purposes of
investigation and before a final order of deportation is
issued, conflicts with paragraph 3, Section I of Article III of
the Constitution" (referring to the 1935 Constitution) 3 is
not invocable herein. Respondent Commissioner's Warrant
of Arrest issued on 7 March 1988 did not order petitioners
to appear and show cause why they should not be
deported. They were issued specifically "for violation of
Sections 37, 45 and 46 of the Immigration Act and Section
69 of the Revised Administrative Code." Before that,
deportation proceedings had been commenced against
them as undesirable aliens on 4 March 1988 and the arrest
was a step preliminary to their possible deportation.
Section 37 of the Immigration Law,
which empowers the Commissioner of
 Immigration to issue warrants for the
arrest of overstaying aliens is
constitutional. The arrest is a stop
preliminary to the deportation of the
aliens who had violated the condition
of their stay in this country. (Morano
vs. Vivo, L-22196, June 30, 1967, 20
SCRA 562).
To rule otherwise would be to render the authority given
the Commissioner nugatory to the detriment of the State.
The pertinent provision of
Commonwealth Act No. 613, as
amended, which gives authority to the
Commissioner of Immigration to order
the arrest of an alien temporary visitor
preparatory to his deportation for
failure to put up new bonds required
for the stay, is not unconstitutional.
xxx xxx xxx
... Such a step is necessary to enable
the Commissioner to prepare the
ground for his deportation under
Section 37[al of Commonwealth Act
613. A contrary interpretation would
render such power nugatory to the
detriment of the State. (Ng Hua To vs.
Galang, G. R. No. 10145, February 29,
1964, 10 SCRA 411).
"The requirement of probable cause, to be determined by a
Judge, does not extend to deportation proceedings."
(Morano vs. Vivo, supra, citing Tiu Chun Hai vs.
Commissioner, infra). There need be no "truncated"
recourse to both judicial and administrative warrants in a
single deportation proceedings.
The foregoing does not deviate from the ruling in Qua Chee
Gan vs. Deportation Board (G. R. No. 10280, September 30,
1963, 9 SCRA 27 [1963]) reiterated in Vivo vs. Montesa,
supra, that "under the express terms of our Constitution
(the 1935 Constitution), it is therefore even doubtful
whether the arrest of an individual may be ordered by any
authority other than a judge if the purpose is merely to
determine the existence of a probable cause, leading to an
administrative investigation." For, as heretofore stated,
probable cause had already been shown to exist before the
warrants of arrest were issued.
What is essential is that there should be a specific charge
against the alien intended to be arrested and deported,
that a fair hearing be conducted (Section 37[c]) with the
assistance of counsel, if desired, and that the charge be
substantiated by competent evidence. Thus, Section 69 of
the Revised Administrative Code explicitly provides:
Sec. 69. Deportation of subject of
foreign power. A subject of a foreign
power residing in the Philippines shall
not be deported, expelled, or excluded
from said Islands or repatriated to his
own country by the President of the
Philippines except upon prior
investigation, conducted by said
Executive or his authorized agent, of
the ground upon which such action is
contemplated. In such a case the
person concerned shall be informed of
the charge or charges against him and
he shall be allowed not less than 3 days
for the preparation of his defense. He
shall also have the right to be heard by
himself or counsel, to produce
witnesses in his own behalf, and to
cross-examine the opposing witnesses.
The denial by respondent Commissioner of petitioners'
release on bail, also challenged by them, was in order
because in deportation proceedings, the right to bail is not
a matter of right but a matter of discretion on the part of
the Commissioner of Immigration and Deportation. Thus,
Section 37(e) of the Philippine Immigration Act of 1940
provides that "any alien under arrest in a deportation
proceeding may be released under bond or under such
other conditions as may be imposed by the Commissioner of
Immigration." The use of the word "may" in said provision
indicates that the grant of bail is merely permissive and not
mandatory on the part of the Commissioner. The exercise
of the power is wholly discretionary (Ong Hee Sang vs.
Commissioner of Immigration, L-9700, February 28,1962, 4
SCRA 442). "Neither the Constitution nor Section 69 of the
Revised Administrative Code guarantees the right of aliens
facing deportation to provisional liberty on bail." (Tiu Chun
Hai et al vs. Deportation Board, 104 Phil. 949 [1958]). As
deportation proceedings do not partake of the nature of a
criminal action, the constitutional guarantee to bail may
not be invoked by aliens in said proceedings (Ong Hee Sang
vs. Commissioner of Immigration, supra).
Every sovereign power has the inherent power to exclude
aliens from its territory upon such grounds as it may deem
proper for its self-preservation or public interest (Lao Tan
Bun vs. Fabre 81 Phil. 682 [1948]). The power to deport
aliens is an act of State, an act done by or under the
authority of the sovereign power (In re McCulloch Dick, 38
Phil. 41 [1918]). It is a police measure against undesirable
aliens whose continued presence in the country is found to
be injurious to the public good and the domestic tranquility
of the people (Forbes vs. Chuoco Tiaco et al., 16 Phil. 534
[1910]). Particularly so in this case where the State has
expressly committed itself to defend the tight of children
to assistance and special protection from all forms of
neglect, abuse, cruelty, exploitation, and other conditions
prejudicial to their development (Article XV, Section 3[2]).
Respondent Commissioner of Immigration and Deportation,
in instituting deportation proceedings against petitioners,
acted in the interests of the State.
WHEREFORE, the Petition is dismissed and the Writ of
Habeas Corpus is hereby denied.
SO ORDERED.
Yap, C.J., Paras, Padilla and Sarmiento, JJ., concur.
Footnotes
1 The right of the people to be secure
in their persons, houses, papers and
effects against unreasonable searches
and seizures shall not be violated and
no warrant shall issue but upon
probable cause, to be determined by
the judge after examination under oath
or affirmation of the complainant and
the witnesses he may produce, and
particularly describing the place to be
searched, and the persons or things to
be seized." (Sec. 1[3], Art. III).
2 The right of the people to be secure
in their persons, houses, papers, and
effects against unreasonable searches
and seizures of whatever nature and for
any purpose shall be inviolable, and no
search warrant or warrant of arrest
shall issue except upon probable cause
to be determined personally by the
judge after examination under oath or
affirmation of the complainant and the
witnesses he may produce, and
particularly describing the place to be
search and the persons or things to be
seized." (Section 2, Art. III).
3 Reiterated in Neria vs. Vivo (L-26611-
12, September 30, 1969, 29 SCRA 701);
Tiu vs. Vivo, L- 21425, September 15,
1972, 47 SCRA 23; and Ang Ngo Chiong
vs. Galang, L-21426, October 22, 1975,
67 SCRA 338).